This ruling of the Tribunal and any findings expressed therein relates solely to evidence concerning the issue of compliance by Mr. Liam Lawlor with an Order of this Tribunal made on the 12th March 2003 and is particularly concerned with the close and detailed examination of the steps taken by him in purported compliance with that Order.
The Order of 12th March 2003 required Mr. Lawlor to make discovery on oath and produce all documentation in his possession or within his power and procurement concerning the sale by him, jointly with Mrs. Hazel Lawlor, of approximately one acre at Somerton, Lucan, County Dublin in or about November 2001 and including, but not limited to, the receipt of application of the proceeds of sale of the said transaction. The Order further provided that the Affidavit of Discovery be made in the form provided for in Form 10, Appendix C of the Rules of the Superior Courts 1986 (as amended). Mr. Lawlor had been notified on the 14th February 2003 that the Tribunal had intended making an Order in these terms and was advised as to his entitlement to make submissions to the Tribunal before any such Order was made. No submissions were, in fact, made by Mr. Lawlor.
In purported compliance with the Order of the Tribunal of the 12th March 2003, Mr. Lawlor swore a number of affidavits commencing with an affidavit sworn on 31st March 2003. This affidavit was clearly deficient in both form and substance. An extension of time was granted to Mr. Lawlor for the swearing of further affidavits in the correct form. On 7th April 2003 Mr. Lawlor was informed that as he failed to comply with the Discovery and Production Order, the Tribunal would consider applying to the High Court pursuant to Section 4 of the Tribunal of Inquiry (Evidence) (Amendments) Act 1997 for an order compelling Mr. Lawlor to comply with the Tribunal Order.
A further warning letter was sent by the Tribunal to Mr. Lawlor on the 15th May 2003, once again elaborating on the deficiencies in his purported discovery to date. Mr. Lawlor was advised on 19th June 2003 that the Tribunal had decided to summon him to give oral evidence on the compliance issue not before the 8th July 2003.
Oral evidence has been taken from Mr. Lawlor between 8th July 2003 and the 31st July 2003 and again between 16th September and 23rd September 2003 with evidence from Mr. Tony Seddon, solicitor, on 17th and 18th September. During these periods, and with the leave of the Tribunal, Mr. Lawlor has discovered and delivered some 17,000 additional pages of documentation pursuant to the order of the 12th March 2003. The most recent delivery of a substantial amount of documentation by Mr. Lawlor occurred as late of 12th September 2003, some six months or so after the making of the initial Order.
Prior to the Order of 12th March 2003, Orders for discovery and production were made by the Tribunal to Mr. Lawlor, relating to other matters relevant to the Tribunal's Terms of Reference, the first one being made on the 8th June 2000. Arising from same, Mr. Lawlor was subsequently referred by this Tribunal to the High Court pursuant to Section 4 of the Tribunal of Inquiry (Evidence) (Amendment) Act 1997. On three occasions the High Court has found Mr. Lawlor not to have complied with the Tribunal discovery and production Orders resulting with in Mr. Lawlor serving three terms of imprisonment.
Notwithstanding the fact that Mr. Lawlor is not on this occasion legally represented, the Tribunal is satisfied that, because of Mr. Lawlor's previous dealings with the Tribunal on the question of discovery and consequent upon his appearance in the High and Supreme Court over the past three years, he has a detailed and thorough knowledge of the discovery process including the necessity to use the form of affidavit provided for in the Rules of the Superior Courts, and he is well aware as to what is required to comply with the Order of 12th March 2003.
Furthermore, the contention made by Mr. Lawlor that he has been unable to secure any legal advice relating to the discovery Order because of lack of funds is totally rejected by the Tribunal. The Tribunal is satisfied that Mr. Lawlor has access to sufficient funds to pay for legal advice, if it was his wish so to do.
Having considered the documentation discovered and produced by Mr. Lawlor in purported compliance with the Order of 12th March 2003, and with the benefit of oral evidence of Mr. Lawlor together with that of Mr. Michael Whelan, Mr. John Barrett and Mr. Tony Seddon, solicitor, the Tribunal now makes the following findings and conclusions, solely in relation to this compliance issue:
1. Prior to the commencement of Mr. Lawlor's oral testimony on 8th July 2003, Mr. Lawlor had failed to comply with the order of 12th March 2003 to a degree that was very significant and which amounted to obstruction of the Tribunal in its work, and he persisted in doing so in spite of generous extensions of time granted by the Tribunal to enable him to comply. This failure to comply not only related to the persistent failure by Mr. Lawlor to use a format of Affidavit provided for in the Rules of the Superior Courts as he was directed to use, but also as to the substance and content of the affidavits actually sworn by him.
2. Mr. Lawlor's non-compliance not only related to relevant documentation in his possession but also documentation within his power and procurement, including documentation physically held by Seddons solicitors in London and Prague. Much of this documentation was only identified and made available by Mr. Lawlor in September 2003, by which time the Tribunal had secured the agreement by Mr. Tony Seddon, solicitor, to attend and give evidence, which he did at considerable expense to the Tribunal and resulting in further additional delay to the Tribunal;
3. Mr. Lawlor's non-compliance with the order of 12th March 2003 continued after the 8th July 2003 and throughout his oral testimony.
4. The contention of Mr. Lawlor that he was unable to access or was in some way fettered in his access to certain relevant documentation held by his foreign solicitors because of lack of funds is rejected as being totally false and grossly exaggerated by him. The Tribunal takes this view only after close examination and consideration of the evidence given by Mr. Lawlor on this particular subject.
5. The Tribunal is, at this belated stage, reasonably satisfied that Mr. Lawlor has now complied with the Order of 12th March 2003 insofar as he may be able so to do at present. In arriving at this conclusion the Tribunal accepts that Mr. Lawlor's failure to procure documentation in the possession of Haynes & Trias, solicitors, Gibraltar, Nicholas Morgan, solicitor, Jersey and David Morgan, Whitehead & Company, solicitors, Jersey may, on its face be as a result of the refusal of all or some of these parties, (who are outside the jurisdiction), to permit access to and production of such documentation to the Tribunal for reasons of solicitor/client confidentiality involving third parties or on the grounds of relevance. However, the Tribunal remains anxious to examine this documentation and will continue to seek its production by other means, including, if possible, securing the attendance of Nicholas Morgan, solicitor, to give evidence to this Tribunal. Therefore the Tribunal expressly reserves the right to revisit the question of Mr. Lawlor's compliance with the Order of 12th March 2003 in respect of this particular documentation at a date in the future should it be appropriate so to do.
6. The Tribunal is satisfied that apart from the other documentation referred to in paragraph 5 above, all other documentation furnished by Mr. Lawlor since commencement of this compliance module was within the possession, power and procurement of Mr. Lawlor at the time he swore his first Affidavit of Discovery. Having heard evidence from Mr. Lawlor the Tribunal is satisfied that the withholding of this documentation was a deliberate act on his part, and amounted to non-cooperation with the Tribunal.
7. Mr. Lawlor, over the course of his oral examination commencing on 8th July 2003, repeatedly lied to this Tribunal, was evasive, dismissive, unco-operative, obstructive and lacking in cooperation to a degree which can only amount to a very serious attempt to knowingly mislead, obstruct and hinder the Tribunal in its work and, more particularly, in its lawful pursuit of the documentation sought in the Order of 12th March 2003.
Section 4 of the Tribunals of Inquiry (Evidence) (Amendment) Act 1997 is the statutory provision enabling the Tribunal to refer a person to the High Court in the face of that person's failure to comply with or his disobedience of an Order of Tribunal whereupon the High Court is empowered to make such orders as it deems appropriate to give effect to such Order.
It is this section of the Act of 1997 which has been utilised by this Tribunal on previous occasions to compel Mr. Lawlor to comply with the Tribunal's Orders for Discovery and which has resulted in the imprisonment of Mr. Lawlor for contempt of Court arising from his failure to comply with discovery orders made by the Courts.
There is, however, no statutory provision enabling a Tribunal to refer a person to the High Court purely for punitive purposes where that person has complied with the relevant Tribunal order, however belated, as has occurred on this occasion.
The Tribunal could have chosen to stand down Mr. Lawlor on 8th July 2003 or soon afterwards, and to have then referred him to the High Court pursuant to Section 4 of the Act of 1977, but the Tribunal chose instead to attempt to exact the relevant documentation from him under examination on oath and with the aid of information obtained in the course thereof. In so doing, the Tribunal believes that the relevant documentation that has been now obtained by the Tribunal has been secured much earlier than would have been the case had it stood Mr. Lawlor down in July 2003 and referred the matter to the High Court.
In proceeding in this manner, the Tribunal was particularly mindful of its remit to conduct its areas of investigation in as an efficient and cost effective manner as possible.
In the course of its work this Tribunal has frequently to contend with evidence which, on its face appears less than truthful, but on many such occasions an actual finding that such evidence is in fact untruthful must await later evidence from others or evidence gleaned from a close perusal of documentation. It is for this reason that the Tribunal will only occasionally make a finding that particular evidence was given by a witness knowing it to be untrue until such time as all related evidence has been considered. On this occasion, however, and as the Tribunal concludes this compliance hearing, which is effectively a module in its own right, we deem it appropriate to express our deep concern at the evidence given by Mr. Lawlor in such circumstances where he knew that such evidence was false and untrue. There are a number of instances where the Tribunal is satisfied that untruthful evidence was knowingly given by Mr. Lawlor over this period. However, in respect of two particular instances given Mr. Lawlor's blatant disregard for the truth, the Tribunal hereby directs that the relevant transcripts of evidence together with the relevant documentation be referred to the Director of Public Prosecutions to enable him to decide if any further action was appropriate.
These two instances are:
(1) Evidence given by Mr. Lawlor on 8th July 2003 and following days relating to an explanation for a payment for 100,000 pounds and 17,500 pounds by Mr. Michael Whelan/Maplewood Holdings/Lunar Sea Developments for himself or for his benefit; and
(2) Evidence given by Mr. Lawlor on the 8th July 2003 and following days relating to the source, preparation and delivery of an invoice of 100,000 pounds plus VAT of 17,500 pounds on a bill heading purporting to be from Seddons Solicitors, London and Prague.
In both these instances the Tribunal is satisfied that Mr. Lawlor gave evidence under oath which he knew to be false and he did so for the purposes of obstructing or hindering the work of the Tribunal.
This referral of course in no way inhibits the Director of Public Prosecutions from examining other evidence given by Mr. Lawlor and others should he wish to do so.